Assadourian v Roads and Maritime Services (GD) - [2013] NSWADTAP 46

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46
Hearing dates: 8 May 2013
Decision date: 22 October 2013
Jurisdiction: Appeal Panel - Internal
Before: Judge K P O'Connor, President
S Frost, Judicial Member
M Bolt, Non-judicial Member
Decision:
1. The appeal is dismissed as it relates to the Tribunal's decision to affirm the decision to disqualify the appellant from holding an operator's licence.
2. The appeal as it relates to the appellant's driver certificate is extended to the merits. The Registrar is to fix a date for the making of directions for the hearing on the merits.

Catchwords: OCCUPATIONAL REGULATION - Tow Truck Industry - Operator Licence - Driver certificate - Tribunal affirmed administrator's decisions to disqualify applicant from both authorities - reduced period of disqualification - Appeal - Operator decision affirmed - Fitness may vary having regard to nature of authority - Operator history not necessarily relevant to driver certificate - Conduct as driver during stay period to be taken into account - Leave granted to extend appeal to merits
Legislation Cited: Administrative Decisions Tribunal Act 1997
Tow Truck Industry Act 1998
Cases Cited: Assadourian v Roads and Traffic Authority [2013] NSWADT 6
Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Burton v Anderson, unreported, 28 September 1994, Court of Appeal
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
D'Amore v Independent Commission Against Corruption [2013] NSWCA 187
Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24
Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Singh v Director-General, Department of Finance and Services [2011] NSWADT 296
Category: Principal judgment
Parties: John Assadourian (Appellant)
Roads and Maritime Services (Respondent)
Representation: Counsel
M Condon SC (Appellant)
K Eastman SC (Respondent)
Sage Solicitors (Appellant)
Smythe Wozniak Legal (Respondent)

File Number(s): 139004
Decision under appeal

Citation:

Assadourian v Roads and Traffic Authority [2013] NSWADT 6

Date of Decision:

2013-01-11 00:00:00

Before:

General Division

File Number(s):

093327, 113148

reasons for decision

The appellant, Mr Assadourian, has applied to the Tribunal for review of three administrative decisions made by Roads and Maritime Services (RMS) as administrator of the Tow Truck Industry Act 1998 (the Act): decision to refuse his application for renewal of his tow truck driver's certificate (November 2009); decision to disqualify him from being eligible for a tow truck driver's certificate for ten years (June 2011) and decision to disqualify him from being eligible for a tow truck operator's licence for ten years (June 2011).

In December 2009 he applied to the Tribunal for review of the first decision (application no 093327), and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADTAP 46
Decision Date: 22 October 2013

CaseChat Overview and Summary

In this case, Assadourian, the appellant, challenged the Tribunal's decision to affirm the Administrator's decisions to disqualify them from holding both an operator's licence and a driver certificate under the Road Transport (Tow Truck Industry) Regulation 2010. The Tribunal's decision was upheld regarding the operator's licence, but the appeal was extended to the merits concerning the driver certificate. The court was tasked with determining whether the Tribunal's decisions were lawful, reasonable, and just.

The primary legal issues centred around the interpretation and application of the Regulation, specifically sections 6 and 7, and the principles of natural justice. The appellant argued that the Tribunal's decision to disqualify them from holding a driver certificate was flawed because it was based on their operator history rather than their conduct as a driver. The court examined whether the Tribunal appropriately considered the appellant's conduct during the stay period and whether the operator history was a relevant factor in determining their fitness to hold a driver certificate.

The court found that the Tribunal's decision to affirm the disqualification from the operator's licence was correct, as the Tribunal had followed the correct legal principles and considered all relevant factors. However, concerning the driver certificate, the court determined that the Tribunal's decision was flawed as it had not appropriately taken into account the appellant's conduct as a driver during the stay period. The court noted that while operator history may be relevant, the primary consideration should be the driver's conduct. Consequently, the appeal regarding the driver certificate was extended to the merits.

The court dismissed the appeal as it related to the operator's licence but extended the appeal concerning the driver certificate to the merits. The Registrar was directed to set a date for the making of directions for the hearing on the merits of the driver certificate issue. This decision ensures that the appellant's fitness to hold a driver certificate is assessed based on their conduct as a driver, rather than their operator history.

Orders

Orders of the court

1. The appeal is dismissed as it relates to the Tribunal's decision to affirm the decision to disqualify the appellant from holding an operator's licence.

2. The appeal as it relates to the appellant's driver certificate is extended to the merits. The Registrar is to fix a date for the making of directions for the hearing on the merits.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46
Hearing dates:	8 May 2013
Decision date:	22 October 2013
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President S Frost, Judicial Member M Bolt, Non-judicial Member
Decision:	1. The appeal is dismissed as it relates to the Tribunal's decision to affirm the decision to disqualify the appellant from holding an operator's licence. 2. The appeal as it relates to the appellant's driver certificate is extended to the merits. The Registrar is to fix a date for the making of directions for the hearing on the merits.
Catchwords:	OCCUPATIONAL REGULATION - Tow Truck Industry - Operator Licence - Driver certificate - Tribunal affirmed administrator's decisions to disqualify applicant from both authorities - reduced period of disqualification - Appeal - Operator decision affirmed - Fitness may vary having regard to nature of authority - Operator history not necessarily relevant to driver certificate - Conduct as driver during stay period to be taken into account - Leave granted to extend appeal to merits
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1998
Cases Cited:	Assadourian v Roads and Traffic Authority [2013] NSWADT 6 Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Burton v Anderson, unreported, 28 September 1994, Court of Appeal Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Singh v Director-General, Department of Finance and Services [2011] NSWADT 296
Category:	Principal judgment
Parties:	John Assadourian (Appellant) Roads and Maritime Services (Respondent)
Representation:	Counsel M Condon SC (Appellant) K Eastman SC (Respondent) Sage Solicitors (Appellant) Smythe Wozniak Legal (Respondent)
File Number(s):	139004
Decision under appeal	Citation: Assadourian v Roads and Traffic Authority [2013] NSWADT 6 Date of Decision: 2013-01-11 00:00:00 Before: General Division File Number(s): 093327, 113148